State v. Wallace

• Decision Date: 16 December 1959
• Docket Number: No. 583,583
• Parties: STATE, v. Edward Lee WALLACE, Jr., and Woodrow Wilson Holder.
• Court: North Carolina Supreme Court

Page 714

111 S.E.2d 714

251 N.C. 378

STATE, v. Edward Lee WALLACE, Jr., and Woodrow Wilson Holder.

No. 583

Supreme Court of North Carolina.

Dec. 16, 1959

Malcolm B. Seawell, Atty. Gen., and H. Horton Rountree, Asst. Atty. Gen., for the State.

Robert S. Cahoon, Greensboro, for defendants, appellants.

PARKER, Justice.

Defendant Wallace assigns as error that the Trial Court erred in imposing judgment of imprisonment upon him on his conviction of failing to heed a police siren while being in ample hearing distance of the police siren, as charged in the second warrant against him. Defendant Holder assigns as error that the Trial Court erred in imposing judgment of imprisonment upon him on his conviction of failing to heed a police siren while same was in reasonable distance to him, as charged in the second warrant against him.

Defendants have filed a joint brief. In their brief they contend in respect to these assignments of error that the judgments of imprisonment imposed upon them on their convictions on the second warrants should be arrested, for the reason that the second warrants utterly fail to charge any criminal offense. Defendants made no motion in arrest of judgment, according to the record. However, this Court has said in State v. Corl, 250 N.C. 252, 108 S.E.2d 608, 612: 'An appeal will be taken as an exception to the judgment and raises the question as to whether error in law appears upon the face of the record.'

It is an essential of jurisdiction that a criminal offense shall be sufficiently charged in a warrant or an indictment. State v. Nugent, 243 N.C. 100, 89 S.E.2d 781; State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Scott, 237 N.C. 432, 75 S.E.2d 154; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166.

A court cannot properly give judgment in a criminal action, unless it apears in the record that a criminal offense is sufficiently charged. In the absence of a motion in arrest of judgment, it is the duty of this Court to examine the whole record, and if it sees that the judgment should have been arrested, it will, ex mero motu, direct it to be done. State v. Nugent, supra; State v. Thorne, supra; State v. Scott, supra; State v. Watkins, 101 N.C. 702, 8 S.E. 346.

The State contends that the second warrant against each defendant charges all the constituent elements of G.S. § 20-157 (a), which reads as follows: 'Upon the approach of any police or fire department vehicle giving audible signal by bell, siren or exhaust whistle, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, clear of any intersection of highways, and shall stop and remain in such position unless otherwise directed by a police or traffic officer until the police or fire department vehicle shall have passed.'

We do not agree with the contention of the State. The second warrant against each defendant does not charge that the defendant was the driver of any vehicle, and completely fails to aver the words of G.S. § 20-157(a), either literally or substantially, or in equivalent words. Such being the case, the second warrant against each defendant utterly fails to charge a violation of G.S. § 20-157(a).

The State makes no contention that the second warrants charge any violation of any city ordinance. It would seem that the second warrants were drawn on printed forms used in the Municipal-County Court, and the concluding words 'and in violation of City Ordinance, Chapter, Section.' are mere surplusage, which should have been stricken out. See State v. Wilson, 218 N.C. 769, 12 S.E.2d 654. In our opinion, the second warrants charge no criminal offense. This Court, ex mero motu, orders the judgment on the second warrant as to each defendant be arrested. The legal effect of arresting the judgments is to vacate the verdicts and judgments of imprisonment on the second warrants below, and the State, if it is so advised, may proceed against the defendants for an alleged violation of G.S. § 20-157(a) upon a sufficient warrant or indictment. State v. Nugent, supra; State v. Faulkner, 241 N.C. 609, 86 S.E.2d 81; State v. Scott, supra; State v. Sherrill, 82 N.C. 694.

Each defendant has an assignment of error to the first warrant, similar to his assignment of error to the second warrant. While they made no motions in arrest of judgments of imprisonment imposed on their convictions on the first warrants, they contend in their joint brief that the judgments of imprisonment on the first warrants should be arrested, for the reason that while the first warrants charge the offenses in practically the precise words of G.S. § 20-140, they then allege 'in that he did * * *,' and fail to allege explicit facts showing acts by the defendants in violation of G.S. § 20-140. The first warrants charge the offense practically literally in the words of G.S. § 20-140(a, b), and are sufficient. State v. Randolph, 228 N.C. 228, 45 S.E.2d 132; State v. Gregory, 223 N.C. 415, 27 S.E.2d 140; State v. Wilson, supra.

Each defendant has an assignment of error to the third warrant, similar to his assignment of error to the second warrant. These assignments of error are not set out in their brief, and in support of them no reason or argument is stated or authority cited. They are taken as abandoned by defendants. Rule 28, Rules of Practice in the Supreme Court. 221 N.C. 544, 563; State v. Clayton, N.C., 111 S.E.2d 299.

Each defendant assigns as errors the denial by the trial court of his motions for judgments of nonsuit in each case against him renewed at the close of all the evidence. G.S. § 15-173.

The State's evidence tends to show the following facts: About 9:00 p. m. o'clock on 18 May 1958 two officers of the city of Greensboro Police Department were on duty, and were sitting in a patrol car parked beside the Western Cafe in the vicinity of Spring Garden Street. One of the officers saw a 1955 Ford truck traveling east on Spring Garden Street at a speed of 40 to 45 miles an hour, where the speed limit for that area was 35 miles an hour. The officer driving the patrol car drove into Spring Garden Street, as the truck made a left turn into Copeland Street. The patrol car followed the truck. The truck swung around in the Richfield Service Station at the intersection of Spring Garden and Copeland Streets, and was directly facing the patrol car. The officer drove the patrol car up facing the truck, turned on the red light on top of the patrol car, got out, and started walking to the truck. Whereupon, the driver of the truck put it in reverse, backed up, and entered Spring Garden Street traveling east at a high rate of speed. The officer jumped back in the patrol car and with the red light flashing on the patrol car and the siren sounding, pursued the truck. The truck continued east on Spring Garden Street, reaching a speed of about 75 to 80 miles an hour. The truck ran through a red light on Spring Garden Street, where it intersects Oakland Avenue. The truck turned left on to Park Terrace, proceeded down Masonic Drive, turned left into Cliffside Terrace, and came all the way back up to Spring Garden Street. The truck went a short distance west on Spring Garden Street, and turned left into Pinecroft Road, and continued south on Pinecroft Road to about 250 yards from the High Point Road, where the officer stopped the truck. The truck ran through a stop sign at the intersection of Cliffside Terrace and Oakland Avenue; it ran through another stop sign at Collier's Drive and Spring Garden Street. The truck entered Pinecroft Road at a very high rate of speed, completely on the wrong side of the center division of the intersection, and continued on the wrong side until stopped. The maximum speed limit through the area of pursuit is 35 miles an hour. Pinecroft Road along the path of pursuit is completely residential, except for two service stations. Along Pinecroft Road the truck was operated at a speed of about 75 miles an hour. The pursuit covered a distance of around two and one-half miles, and lasted three to four minutes. During the entire time of the...